STATE v. LEDESMA (2021)

In one of these consolidated cases, defendant was convicted on one count of second-degree unlawful sexual penetration (Count 1), three counts of first-degree sexual abuse (Counts 2, 3 and 4), and one count of second-degree rape (Count 5).¹ The jury was unanimous on all counts except Count 4. Defendant argues on appeal that the trial court plainly erred in instructing the jury that it could return nonunanimous verdicts, and in accepting a nonunanimous verdict on Count 4. Defendant also challenges the constitutionality of his sentence. The state concedes that defendant's conviction on Count 4, which is based on a nonunanimous verdict, must be reversed in light of Ramos v. Louisiana, 590 U.S. ––––, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020). We agree and accept that concession, and exercise our discretion to correct the error for the reasons set forth in State v. Ulery, 366 Or. 500, 464 P.3d 1123 (2020). Our reversal on that count obviates the need to address defendant's sentencing argument.

Defendant also argues that his remaining convictions should be reversed based on the erroneous nonunanimous verdict instruction. We reject that argument for the reasons set forth in State v. Flores Ramos, 367 Or. 292, 478 P.3d 515 (2020), and State v. Kincheloe, 367 Or. 335, 478 P.3d 507 (2020), in which the court concluded that the erroneous nonunanimous jury instruction was harmless with respect to unanimous verdicts.

In case 17CR81016, Count 4 reversed and remanded; remanded for resentencing; otherwise affirmed. In case 17CR80321, affirmed.

FOOTNOTES

1.   Defendant does not challenge his conviction in the other consolidated case.

PER CURIAM